Combating human trafficking: a South African legal perspective

[摘要] The transatlantic slave trade has been outlawed for more than 200 years. However, could it be that slavery still exists, but in a modern form, namely that of human trafficking for various exploitative purposes? Investigating the combating of human trafficking from a legal perspective is a relatively new research field in South Africa. Therefore, this study, having identified the gap in research on the current South African legal response to combating human trafficking, strives to make a contribution to the body of research on this issue. The aim of the study is threefold: first, to provide a better understanding of the multifaceted human trafficking crime; secondly, to clarify obligations to combat human trafficking contained in relevant international and African regional instruments; and, thirdly, to analyse the South African legal response for combating trafficking and to assess whether this response complies with the identified international and African regional obligations. The objectives of the research are designed to realise the threefold aim. As regards the first part of the aim, the objective is to describe and clarify important issues relating to human trafficking. This is in line with the reasoning of Gould1 that an in-depth knowledge of the human trafficking phenomenon is vital for the purpose of an effective response. To realise the second part of the aim, the objective is to review the historical development of relevant international and African regional instruments in order to identify, categorise and, as far as possible, synthesise obligations to combat human trafficking. Unlike many other studies, the present study draws obligations and recommended directives and guidelines for combating this crime from the broader framework of instruments relevant to human trafficking, and not only from the landmark treaty on human trafficking, namely the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol). As regards the last part of the aim, the objective is twofold. First, the current South African legal framework applicable to human trafficking is described and analysed. This framework comprises three components: existing general laws that may be applicable to some human trafficking activities; the first trafficking-specific legislative provisions as contained in the Children's Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007; and the comprehensive anti-trafficking legislation proposed in the Prevention and Combating of Trafficking in Persons Bill (B7-2010). While the first part of the last objective maps out the South Africa antitrafficking framework, the second part compares this framework with international and African regional obligations pertaining to domestic counter-trafficking responses. Finally, based on this comparison, To realise the second part of the aim, the objective is to review the historical development of relevant international and African regional instruments in order to identify, categorise and, as far as possible, synthesise obligations to combat human trafficking. Unlike many other studies, the present study draws obligations and recommended directives and guidelines for combating this crime from the broader framework of instruments relevant to human trafficking, and not only from the landmark treaty on human trafficking, namely the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol). As regards the last part of the aim, the objective is twofold. First, the current South African legal framework applicable to human trafficking is described and analysed. This framework comprises three components: existing general laws that may be applicable to some human trafficking activities; the first trafficking-specific legislative provisions as contained in the Children's Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007; and the comprehensive anti-trafficking legislation proposed in the Prevention and Combating of Trafficking in Persons Bill (B7-2010). While the first part of the last objective maps out the South Africa antitrafficking framework, the second part compares this framework with international and African regional obligations pertaining to domestic counter-trafficking responses. Finally, based on this comparison,recommendations are made for enhancing the South African legal response designed to combat human trafficking. By realising the threefold aim of the study, the study can, it is submitted, make a valuable contribution to research on combating human trafficking in South Africa from a legal perspective. By making the research available to the legal fraternity, such research may prove useful in litigation, in the training of lawyers, and in future law reform. The study may also be valuable in informing multidisciplinary stakeholders and service providers dedicated to combating human trafficking by contributing to a better understanding of the human trafficking phenomenon. Lastly, the study may be of practical value to other African countries that are in the process of drafting anti-trafficking legislation conducive to the African context. These countries may find some guidance in considering the road travelled by South Africa in the search for comprehensive anti-trafficking legislation.

[发布机构] University of the Free State